Opinion
SC: 158304 COA: 337394
04-24-2020
Tim Edward BRUGGER, II, Plaintiff-Appellee, v. MIDLAND COUNTY BOARD OF ROAD COMMISSIONERS, Defendant-Appellant.
Order
By order of December 4, 2018, the application for leave to appeal the May 15, 2018 judgment of the Court of Appeals was held in abeyance pending the decision in W A Foote Mem. Hosp. v. Mich. Assigned Claims Plan ). On order of the Court, the case having been decided on October 25, 2019, 504 Mich. 985, 934 N.W.2d 44 (2019), the application is again considered, and it is GRANTED. The parties shall address: (1) whether Streng v. Bd. of Mackinac Co. Rd. Comm'rs , 315 Mich. App. 449, 890 N.W.2d 680 (2016), lv. den. 500 Mich. 919, 887 N.W.2d 802 (2016), was correctly decided, and if so (2) whether Streng "clearly established a new principle of law" and thereby satisfied the threshold question for retroactivity set forth in Pohutski v. City of Allen Park , 465 Mich. 675, 696, 641 N.W.2d 219 (2002), compare Pohutski , 465 Mich. at 696-697, 641 N.W.2d 219 (citations omitted) ("Although this opinion gives effect to the intent of the Legislature that may be reasonably be inferred from the text of the governing statutory provisions, practically speaking our holding is akin to the announcement of a new rule of law, given the erroneous interpretations set forth in [ Hadfield v. Oakland Co. Drain Comm'r , 430 Mich. 139, 422 N.W.2d 205 (1988) and [ Li v. Feldt (After Remand) , 434 Mich. 584, 456 N.W.2d 55 (1990) ].") with Wayne Co. v. Hathcock , 471 Mich. 445, 484, 684 N.W.2d 765 (2004) ("Our decision today [overruling Poletown Neighborhood Council v. Detroit , 410 Mich. 616, 304 N.W.2d 455 (1981) ] does not announce a new rule of law, but rather returns our law to that which existed before Poletown and which has been mandated by our Constitution since it took effect in 1963."). See also Chevron Oil v. Huson, 404 U.S. 97, 106, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971) (citations omitted) (holding that a decision establishes a new principle of law, such that it may be applied retroactively, if it "overrul[es] clear past precedent on which litigants may have relied ..."); and if so (3) whether Streng should be applied retroactively under the "three factor test" set forth in Pohutski .
We further ORDER that this case be argued and submitted to the Court together with the case of Estate of Brendon Pearce v. Eaton County Road Commission , Docket No. 158069, at such future session of the Court as both cases are ready for submission. The total time allowed for oral argument shall be 60 minutes: 30 minutes for appellants and 30 minutes for appellees, to be divided at their discretion. MCR 7.314(B)(1).
The Negligence Law Section of the State Bar of Michigan, Michigan Association of Counties, and Michigan Municipal League are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae. Motions for permission to file briefs amicus curiae and briefs amicus curiae regarding these cases should be filed in Estate of Brendon Pearce v. Eaton County Road Commission , Docket No. 158069, only and served on the parties in both cases.
Markman, J. (concurring).
I concur with our orders granting leave to appeal in this case and in Estate of Brendon Pearce v. Eaton Co. Rd. Comm. , Docket No. 158069. I write separately only to encourage the parties and any amici, when addressing the issue of the retroactivity of Streng v. Bd. of Mackinac Co. Rd. Comm'rs , 315 Mich. App. 449, 890 N.W.2d 680 (2016), lv. den. 500 Mich. 919, 887 N.W.2d 802 (2016), to address the relevance of the tension identified in Pohutski v. City of Allen Park , 465 Mich. 675, 641 N.W.2d 219 (2002), between "the general rule ... that judicial decisions are given full retroactive effect" and the exception to that rule of "a more flexible approach ... where injustice might result from full retroactivity [of a corrected interpretation of the law]," id. at 695-696, 641 N.W.2d 219, as well as what consideration should be given to any asserted "injustice" that might result to the prevailing party in cases in which the new rule is applied prospectively only.